Nursultan Aliyev (AIFC-C / SCC / 2020/0002) is one of the recent cases decided by the AIFC Court. The main question before the court was whether there was an employment contract between the claimant and the defendant. However, there are also some procedural, evidential, and jurisdictional issues that might be useful for one's legal practice at the AIFC.
Background
The claimant, Mr. Aliyev, sought damages and other relief against the defendant, Proportunity Management Company Ltd ( “Proportunity” ), arising out of an alleged employment contract between him and Proportunity which was terminated without the notice period prescribed by AIFC Employment Regulations (AIFC Regulations No. 4 of 2017, as amended in July 2019) ( “the Employment Regulations” ) and without payment of a portion of accrued salary. The matter turned upon whether there was an employment contract in the first place. The case commenced at the AIFC Small Claims Court ( “SCC” ) and eventually failed to obtain a permission to appeal to the AIFC Court of Appeal ( “CA” ).
Procedural, Evidential & Jurisdictional Issues
At the SCC, Justice Charles Banner QC directed an oral hearing to be take place on 29 July 2020. It is worth to mention it is possible to seek a determination on papers without an oral hearing in the SCC, however the court was of the view that due to the nature of the dispute in this case it was appropriate to hold a hearing so that the factual evidence could be tested and evaluated by the court in that light.
On the day of the oral hearing, the defendant sought to produce further documentation. Justice Charles Banner QC noted that there was no convincing reason why this document had not been filed and served by the deadline prescribed earlier in his direction. In addition to the fact that the description of the document did not suggest that it would add anything significance to the material already before the court, admitting this evidence would also necessitate an adjournment to give the claimant a fair chance to consider it before giving his evidence ... This would frustrate the main objective of the SCC which is to provide a fast-track means of determining small claims. Accordingly, the defendant's request was rejected.
The parties were given an opportunity for cross-examination. However, it was stressed that this is not an automatic right in SCC proceedings and this case should not be seen as setting a general precedent. Whether or not cross-examination is appropriate in the SCC depends on the particular circumstances of the case.
For the reasons discussed below, the claimant's action failed in the SCC. He subsequently applied for permission to appeal but was rejected by the AIFC Court of First Instance ( “CFI” ) on the grounds that Mr. Aliyev did not have real prospects of success in an appeal.
On 29 October 2020, the claimant filed a further application for permission to appeal to the CA. In rejecting the application, Justice Sir Stephen Richards noted that, according to AIFC Court Regulations 2017 s.26 (7) and AIFC Court Rules 2018 s.29.49, jurisdiction to entertain an appeal from a decision of the SCC is conferred on the CFI alone ... And, if the CFI dismisses the application, 'that is the end of the matter'. Therefore, it was held that the CA has no jurisdiction to entertain the application for permission to appeal.
In any case, the claimant appeared to view an appeal as an opportunity to relitigate the case with the benefit of fresh evidence he had found. However, the normal position is that an appeal will be limited to review the decision of the lower court. Normally, evidence which was not before the lower court will not be received. Therefore, even if the CA had jurisdiction, the case would be dismissed anyway on substantive grounds.
The dispute
At its core, the issue before the court was whether the claimant had a contract of employment with the defendant or whether he had an internship with the defendant's director ( “Director” ) personally. On the balance of probabilities, the SCC concluded that the claimant only had an internship with the Director personally and not a contract of employment with the defendant.
Several considerations had led the court to reach this conclusion. First, the claimant had never sought a written confirmation of the alleged job offer or a copy of the claimed contract of employment. Considering Mr. Aliyev is a qualified lawyer, the court would expect in those circumstances normally a qualified lawyer would be more sensitive and would have promptly requested his employer to comply with the law, in particular Regulation 11 of the Employment Regulations which provides that the employer must give the employee a written copy of the signed contract of employment within 2 months after the start of the employment.
Secondly, the claimant's remuneration was paid from the Director's personal bank account, as opposed to from the defendant's corporate account. The court saw this as a compelling indicator that the claimant's role was with the Director personally.
Lastly, the claimant had not done any work in the interests of the defendant. Instead, the court is satisfied that he had only carried out exclusively the Director's personal instructions which had no relation to the defendant or fell within the advertised job description of a lawyer at the defendant which the claimant claimed he was offered and accepted.
As a result, the defendant's contention that the claimant was recruited as a personal intern of the Director was accepted. The claimant's claim against the defendant under the Employment Regulations therefore failed. However, Justice Charles Banner QC noted that there remained a potential question as to whether the claimant's internship with the Director was itself a contract of employment to which the Employment Regulations applies and whether, if so, the claimant might have a claim against the Director. The claimant declined to add the Director to the proceedings, thus the court did not venture into this direction.
Comment
It is clear that the procedural aspect of a case is as important as its substance. Parties are therefore advised to familiarize themselves with the AIFC Court Regulations and Court Rules. Particular attention should be paid to the overriding objectives and the jurisdiction of the Court, as well as the powers of the judges.
This case has also shown certain elements that may be crucial to establish an employment relationship. This includes a confirmation of job offer, a copy of employment contract, activities carried out during the alleged employment period, as well as payment of remuneration from a corporate account.
The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of the AIFC Academy of Law, any other AIFC body or entity, or any other agency, organization, employer or company. Assumptions made in the analysis are not reflective of the position of any entity other than the authors and these views are always subject to change, revision, and rethinking at any time.
